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Gene Healy

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Gene Healy is a Vice President at the Cato Institute who appeared multiple times on The Bob Zadek Show to discuss the constitutional and historical dimensions of impeachment. Across episodes spanning 2018 and 2019, Healy and host Bob Zadek examined the origins of the impeachment power, the precedent set by early cases, and the standards by which modern presidential conduct should be judged.

Impeachment as a remedy, not a criminal trial

Healy’s central framing was that impeachment is not a criminal proceeding. He noted that it does not put a person’s life or liberty at risk, and that the ultimate remedy for a conviction in the Senate is removal from office — the person is “out of a job.” Because the consequences differ from a criminal trial, Healy argued it makes sense that there is no prescribed burden of proof, and that the burden of showing danger to citizens’ rights should be lower than the beyond-a-reasonable-doubt standard used when imprisonment or execution is at stake Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).

He illustrated the distinction with the case of federal judge Alcee Hastings of Florida, who was acquitted in a bribery trial but subsequently impeached and removed from the federal bench for the same behavior. Healy observed that this shows the criminal process and the impeachment process are two different procedures with different consequences, and that the difference in burdens of proof makes sense Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).

In a later episode, Healy described his book Impeachment: The Indispensable Remedy and a related article in Reason magazine, summarized by Zadek as arguing “Don’t freak out about impeachment.” Healy said he wanted to “throw cold water on all the hysteria over impeachment,” arguing that historical experience shows impeachment is not that disruptive, does not paralyze government, does not wreck the economy, and is not a national trauma. He said it has rarely done serious harm and in at least one occasion — 1974 — did a lot of good. He attributed the tendency to treat impeachment as a world-historical, earth-shaking event to what he called the “cult of the presidency” Which Impeachment Movie Are You Watching? (2019).

The Andrew Johnson precedent

Healy discussed the impeachment of Andrew Johnson in 1868 at length. He explained that Johnson was impeached for violating the Tenure of Office Act, which prevented him from firing cabinet officials without the advice and consent of the Senate, and that this statute made up most of the 11 articles of impeachment. But he highlighted Article X, which was not focused on that statute at all and instead accused Johnson of bringing the presidency into scandal and disrepute through a series of inflammatory speeches on the campaign trail during the midterm elections of 1866 Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).

Zadek characterized this as the 1868 equivalent of sending out early morning tweets, and Healy agreed. Healy noted that the statute Johnson violated was itself clearly unconstitutional as an intrusion into the operation of the executive, so the only crime alleged was violating a clearly unconstitutional law. He said Johnson was really accused of the 1868 equivalent of tweeting, and that his abusive conduct on the stump was what got him impeached. General Ulysses S. Grant, who had to accompany Johnson as part of his entourage during the speaking tour, wrote to his wife that he had never been more embarrassed and humiliated in his life than to have been part of what he called a disgraceful episode Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).

Johnson escaped conviction in the Senate by one vote. Healy said a number of Republicans who voted against conviction identified the constitutional dubiousness of the Tenure of Office Act when they explained their votes. Although Republicans in the Senate had the numbers to remove Johnson on a party-line basis, they did not have the votes because a number of Republicans thought the case had not been made. Healy used this to argue against the famous quote from Gerald Ford that “an impeachable offense is whatever Congress decides it is at a given moment in history,” saying it actually does matter what offenses you impeach the president for, because if your charges are legally dubious, you are much more likely to fail Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).

Partisanship and the Senate

Zadek proposed that impeachment in the House and conviction in the Senate is constitutionally suspect and bad for the country unless it is bipartisan, leaving a terrible constitutional scar. Healy disagreed. He said every impeachment at a presidential level is going to be partisan, and that this is what has been seen from the three serious attempts. He noted that even in the case of Richard Nixon, most Republicans on the House Judiciary Committee — a majority — voted against all three articles of impeachment. Healy said that setting a standard of perfect bipartisanship would mean even fewer presidential impeachments than have occurred so far. He did allow that there needs to be some buy-in from the president’s party to demonstrate fairness, but not majority buy-in, and that imagining presidential impeachments by consensus or perfectly bipartisan sets too high a standard, particularly now Low Tweets and Misdemeanors: The Impeachment Debate Through the Lens of History and the Constitution (2018).

The Founders and the imperial presidency

Healy addressed the relevance of the Founders’ design to the modern presidency. He noted that the bulk of the discussion at the Constitutional Convention about impeachment was with reference to the presidency, and that the longest debate in 1787 on the impeachment power — on July 20th — was entirely with reference to the impeachment of the president. He said Madison addressed this at least obliquely, talking about how important it is to have an impeachment remedy for the presidency. One of the reasons Madison said it was indispensable is that the presidency is the one office headed up by one man. Madison said that if a judge goes wrong, or if a congressman or two are corrupt, they are sort of drowned out — the multiplicity of members dilutes the damage any one of them can do. But when it comes to the office of the presidency, run by a singular individual, Madison said incapacity or negligence or perfidy in that office could be fatal to the republic Which Impeachment Movie Are You Watching? (2019).

Healy argued that if the Founders viewed the office as uniquely dangerous because it is headed up by one person, that view only becomes more compelling when the office gains vast new powers over the course of more than a century. He noted that in modern impeachment debates, some law professors say too much depends on the office of the presidency and that you cannot remove the president because the presidency itself has become so indispensable. Healy said this cuts the other way: we can survive a crooked federal judge or a crooked cabinet secretary, but there is one official who has nuclear weapons and controls the federal law enforcement apparatus, and if that person is unfit, it is a continuing danger Which Impeachment Movie Are You Watching? (2019).

The Zelensky phone call

In a later episode, Zadek posed a hypothetical about the Zelensky phone call, asking Healy to consider a scenario in which Donald Trump had evidence that Vice President Biden was guilty of treason and asked Zelensky to investigate. Healy said that if there were evidence Joe Biden committed treason, it would be done by prosecutors of the Justice Department, not by Donald Trump in a diplomatic meeting. Asked whether Trump doing it the way Zadek described would be impeachable, Healy said no in that hypothetical. He then offered a counter-hypothetical: if Trump asked Zelensky for a favor — licensing a Trump Towers in Kyiv — and held up military aid for it, people would recognize that as a corrupt abuse of office. Healy asked which of the two hypotheticals was closer to what actually happened on the phone call and surrounding events The New Royal Prerogative: Philip Hamburger on Administrative Law (2014).

Across episodes: the consistency of Healy’s framework

The excerpts show Healy advancing the same basic framework across episodes: impeachment as a political remedy rather than a criminal trial, grounded in the Founders’ concern about a singular executive, and resistant to the idea that partisanship disqualifies the process. The 2018 episode focused on the Andrew Johnson precedent and the burden-of-proof distinction, while the 2019 episode extended the argument to the imperial presidency and the cult of the presidency. The 2014 episode excerpt, despite its date label, addresses the Zelensky phone call and applies the same abuse-of-office standard. The excerpts do not show a development or change in Healy’s position across these appearances; they show a consistent set of arguments applied to different cases.

What the sources do not cover

The excerpts do not state Healy’s full title beyond “Vice President at the Cato Institute,” nor do they provide the founding date of the Cato Institute or its location. The excerpts do not describe the outcome of the Zelensky phone call impeachment or the Senate trial that followed. They do not state which amendment or constitutional provision the Tenure of Office Act was found to violate, beyond Healy’s characterization that it was an intrusion into the operation of the executive. The excerpts also do not cover Healy’s other work at Cato beyond impeachment, though he mentions that the trade and foreign policy teams were busy.

Episodes

3 appearances, 2014–2019.

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